Duffy trial: The admissibility of the Senate’s own verdict on residency

The trial of Senator Mike Duffy paused Thursday to wrestle with the crucial issue of Senate residency qualifications, which has figured prominently in this subplot of the Senate expenses scandal, in both Duffy’s original appointment to the Senate and in his defence.

Duffy’s defence team is contesting the Senate’s right to invoke parliamentary privilege over the admissibility of a 2013 report and other documents that might be favourable to his case.

Duffy’s side in the politically charged trial of the suspended senator is seeking a report done by a Senate in-house auditor on all senators’ qualifications for claiming housing expenses in or near Ottawa.

Jill Anne Joseph asked each senator to provide a health card, driver’s licence and proof of where they vote and where they pay taxes to determine if they really lived in the province they declared was their primary residence. That report was never made public.

A primary residence 100 kilometres from Parliament Hill means a senator can claim housing and meal expenses for staying in the national capital region, which Duffy did, claiming a cottage in P.E.I. — the province he represents — as his primary residence. Joseph’s report was to examine if some senators had moved to Ottawa or never left it, yet were claiming to live somewhere else.

It was no secret that Duffy — an Ottawa-based national news reporter and anchor — had lived in the nation’s capital since the 1970s. The constitutionality of Prime Minister Stephen Harper’s appointment of Duffy to the Senate from P.E.I. regardless of that fact has already been questioned in the trial.

Duffy is facing 31 charges of fraud, breach of trust and bribery, many over his claim his primary residence was the P.E.I. cottage, allowing him to collect $90,000 worth of expenses for an Ottawa house he’d owned before he became a senator.

Lawyer Peter Doody, who was arguing on Duffy’s behalf on a hearing within a hearing in Duffy’s trial Thursday, told the judge the Senate has implicitly and explicitly waived parliamentary privilege because it has already released many confidential documents to the court and has allowed its administrative employees to be interviewed by police.

He pointed out that Senate in-house auditor Jill Anne Joseph talked extensively to the RCMP about the audit the Senate later declared was out of bounds to the court.

In the police interview, Joseph said, “They [the Senate Committee on Internal Economy] said, you’re going to ask for these four pieces of information, the four indicators. That was requested of all senators…I collected the information and I compiled it for them. Um, the list was confidential… So I did up my little report, but they didn’t like it because I argued there was a lack of clear criteria about residency.”

It’s that list of senators who may have also had residency problems as well as Joseph’s conclusions about the lack of clarity about residency that the defence wants to use as evidence. One of the key defence strategies is that rules about the definition of primary residence were not clear at all.

Joseph’s report was held back but but based on her findings, the Senate committee wrote a report that did become public. Called the Nineteenth Report, released in February, 2013, it noted that two senators — Rod Zimmer and Dennis Patterson — were interviewed by the committee, presumably because of red flags raised about their residency in Joseph’s report.

However, the report concluded, “Both explained to the complete satisfaction of the interviewers that their travel claims were in order.”

It continued, “As a result of this process, no other senators were referred to external auditors,” referring to the fact that a year before, in December, 2012, the expense claims or travel patterns of Senators Mike Duffy, Pamela Wallin, Mac Harb and Patrick Brazeau were sent to the auditing firm Deloitte.

If there were ever an argument against the Senate keeping potentially embarrassing documents secret, or its behind-closed-doors self-policing of its own senators’ expenses, it is that Auditor General Michael Ferguson named both Zimmer and Patterson in his report on senators’ expenses released Tuesday.

Zimmer, now retired, had declared that he lived in Winnipeg and claimed secondary expenses for his home in Rockcliffe, an affluent Ottawa neighbourhood. The auditor general found 14 of Zimmer’s 24 trips to Winnipeg during the audit period were trips there and back in one day. Of 713 days during the same period, Zimmer spend 613 of them in Ottawa, not Winnipeg.

Zimmer is said to owe $176, 014 — more than any other senator — and his case has been referred to the RCMP.

Patterson is one of 21 senators Ferguson recommends should repay $22,985 in expenses. None are to do with his residency. He has already repaid $6200.

Doody concluded his arguments by saying, “It is not fair to Senator Duffy and not fair to this court to base its decision on some of the information, and not all of it.

It’s a telling point, because if the judge does allow the documents to remain privileged, and unavailable as evidence, Duffy could argue that he’s been denied a fair trial, a Charter right.